Laboratories of Democracy Reform: State Constitutions and Partisan Gerrymandering

February 15th, 2019, 10:46pm by Sam Wang

Uncertain about whether the Supreme Court will do anything about partisan gerrymandering? We have something for you. Rick Ober, Ben Williams, and I have completed a manuscript, “Laboratories of Democracy Reform: State Constitutions and Partisan Gerrymandering.” It’s available here on SSRN and here as a PDF.

In our article, we argue that partisan gerrymandering can be curtailed on a local basis using state law and constitutions. The intellectual framework was laid out by Chief Justice John Roberts and Justice Elena Kagan in their decision and concurrence in Gill v. Whitford. And even if they themselves don’t use it, this framework is available for state courts to use under state law.

Their logic is built upon the concepts of equal protection and freedom of association: voters should not be penalized individually (Roberts; equal protection) or in the aggregate (Kagan; freedom of association) for expressing partisan views. As it happens, these provisions are found in state constitutions across the nation.

So long as it doesn’t conflict with federal law, a state court-based ruling is not subject to review in federal court. And generally, it is possible for state courts to provide for more rights than federal courts do. So a new state protection can be reconciled with a wide range of possible actions by the Supreme Court on the North Carolina and Maryland cases currently before it. We give dozens of examples where states used their own law or constitution to overturn a map. Finally, we suggest states where conditions may be right for a local approach, including North Carolina and Wisconsin.